Thursday, April 29, 2010

Meenakshi Ganguly - Sri Lanka’s authorities have failed seriously to investigate the allegations of abuses committed during the first months of 2009 - the endgame of the twenty-six-year internal armed conflict with the Liberation Tigers of Tamil Eelam (LTTE). An approach based on semi-private polite persuasion, often referred to as the “Asian way of diplomacy”, has been unable to convince President Mahinda Rajapaksa and the Colombo government to respond to widespread international concern. What now needs to be done?

The Sri Lankan military’s final defeat of the Tamil Tigers in early 2009 was messy and bloody. The insurgents who had long fought for a separate Tamil state in the north and east of Sri Lanka had already been condemned both by the international community and human-rights organisations for widespread abuses. Now, in this last period of the war, Human Rights Watch research found that both the military and the LTTE had violated international humanitarian law, including abuses amounting to war crimes (see “Sri Lanka’s hollow victory”, 20 August 2009).

The history of efforts to ensure accountability for such violations is not promising. For example, a Sri Lankan presidential commission of inquiry was established in 2006 to investigate sixteen important human-rights cases that implicated both sides); this was supplemented by an oversight body - an “International Independent Group of Eminent Persons”, headed by India’s former chief justice PN Bhagwati and including the leading Japanese professor Yozo Yokota. But the eminent-persons group quit in disappointment in March 2008, after the presidential commission was subjected to government interference; the commission failed to finish its job, and President Rajapaksa has never made public even its limited findings.

The pattern has continued in 2009-10. Soon after the war ended, Mahinda Rajapaksa signed a joint communiqué with United Nations secretary-general Ban Ki-moon. This expressed Sri Lanka’s “strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations”, and promised that “the government will take measures” to address allegations related to violations of international humanitarian and human-rights law.” Between the lines, it was clear that the Sri Lankan government wants the international community to trust it to address accountability issues without external intervention.

The bonds of law

The Sri Lankan president declared victory in the long war on 19 May 2009. Almost a year on, Colombo has done nothing to fulfil its promises, and there has still been no accountability for the actions undertaken in the war’s prolonged and destructive climax (see Luther Uthayakumaran, “Sri Lanka: after war, justice”, 21 May 2009). As a result, Ban Ki-moon announced on 5 March 2010 that the secretary-general had decided to establish a panel of experts to advise President Rajapaksa on accountability in Sri Lanka.

The Rajapaksa administration reacted with characteristic venom. Since the end of the long war, it had repeatedly insisted that - against overwhelming evidence to the contrary - there had been no violations by the armed forces. In the same spirit, it described the proposed panel as “intrusive” and “unwarranted”. Sri Lanka’s foreign minister Rohitha Bogollagama even warned that it “has the potential to dent or sour the excellent partnership” with the United Nations.

Sri Lanka also convinced a few of its allies to intervene on its behalf. The non-aligned movement’s ambassador and permanent representative to the UN in New York, Maged A Abdelaziz, sent a letter to Ban Ki-moon in March 2010 warning that he “strongly condemns selective targeting of individual countries, which it deems contrary to the founding principles of the movement and the United Nations charter.”

Such criticism is wholly unjustified. Ban’s initiative can in no way be considered interference in Sri Lanka’s domestic affairs. The panel’s mandate will be limited to advising Ban on next steps to facilitate accountability in Sri Lanka. As the secretary-general has said, it is well within his power to “ask such a body to furnish me with their advice.”

Furthermore, Sri Lanka is bound by international humanitarian law, according to which states are obligated to investigate allegations of war crimes committed by their citizens or on their territory and ensure that perpetrators are prosecuted. The Geneva conventions make clear that justice for war crimes is not solely a matter of a country’s “internal affairs”.

Asian way, western way, human way

In this situation, India and Japan - two Asian countries that can in principle influence Colombo - should support a United Nations initiative to examine options for accountability in Sri Lanka.

India has considerable influence with the Sri Lankan government. It has provided humanitarian relief and assistance for those displaced by the war, including the hundreds of thousands of people interned in military camps for months before their recent release. An Indian field-hospital provided emergency care to over 50,000 people harmed during the fighting or otherwise in need of medical assistance. India is also providing de-mining assistance, and has provided equipment to repair and rebuild homes.

Japan’s voice too carries influence. Its foreign minister Katsuya Okada said on 29 January 2010 that he “strongly expects [that] Sri Lanka will steadily and swiftly carry forward political processes for national reconciliation” and pledged to “support efforts by the government of Sri Lanka.” Japan has since provided Y36,664 million (around $390m) to Sri Lanka under its official development assistance (ODA) loan scheme to finance infrastructure projects, including building roads and water-supply facilities.

However, these large-scale building projects can contribute to long-term national reconciliation only if accompanied by a process of ensuring accountability for abuses that have inflicted deaths on thousands of civilians. For a long time, India and Japan have tried to engage with Sri Lanka, rightly pushing for reconciliation between its ethnic communities, government reform and the return home of those displaced by the armed conflict (see "Sri Lanka's displaced: the political vice", 8 April 2009). That process will be severely hampered if there is no accountability and the minority Tamils believe they are being treated as second-class citizens and a defeated population.

Both New Delhi and Tokyo often contend that their efforts at polite persuasion are more effective than the public condemnation they describe as the “western way”. There is a time and place for private diplomacy, but for years now the Sri Lankan government has ignored such behind-the-scenes advice. In any case, private diplomacy should never become an excuse for inaction in the face of grave human-rights violations. Ban Ki-moon’s panel of experts, although modest, could yet prove to be an important step toward accountability for wartime abuses in Sri Lanka. India and Japan should publicly and wholeheartedly support his initiative.

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